A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

So, let's say that the victim and the defendant send e-mails back and forth on the same night that the defendant allegedly committed a burglary and other crimes. And let's say that, in the wake of the crimes charged, the victim handwrote transcripts of the text messages. At trial, can the victim read the transcripts pursuant to Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Roseberry, 2011 WL 5588725 (Ohio App. 8 Dist. 2011), the answer is "yes."

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

So, can a first-year resident be qualified as an "expert of medicine" under Rule 702? According to the recent opinion of the Colorado Court of Appeals, Div. I. in People ex rel. Strodtman, 2011 WL 5084951 (Colo.App. 2001), the answer is "yes."

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides that

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

So, let's say that a member of a crime family is charged with several crimes, including conspiring to kill a victim. And let's say that the defendant claims that the prosecution erred by failing to disclose to him police reports that contradict testimony given by a key witness for the prosecution regarding exactly where the the victim was on the day of the murder. Can the court take judicial notice of the distance between 2 locations based upon a search on Google Maps? According to the recent opinion of the United States District Court for the Eastern District of New York in United States v. Sessa, 2011 WL 256330 (E.D.N.Y. 2011), the answer is "yes."

Three years ago, I posted an entry about the case of Roland Steele. I then used Steele's case as the launching point for my article, Dismissed with Prejudice. Here's what I wrote about Steele's case in my article:

After a jury trial in Pennsylvania in 1986, Roland William Steele, an African-American man, was convicted of three counts of first-degree murder and related charges based upon his alleged killings of three Caucasian women. In 1996, he unsuccessfully filed a Post-Conviction Relief Act (PCRA) petition, in which he claimed, inter alia, “that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors.” The basis for Steele’s petition, which the PCRA court deemed inadmissible, was the declaration of a juror, “who stated that race was an issue from the inception of the trial. The juror stated in his declaration that ‘early in the trial one of the other jurors commented on the race of the defendant.’” According to the declaration, the racist juror “‘also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty.’” The juror additionally alleged that the racist juror’s “‘comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on.’” Finally, the declaration asserted that the racist juror said during trial that Steele should “‘fry, get the chair or be hung.’”

Devastatingly, the racist juror’s death wish will likely come true because Steele was given three separate death sentences. In 2008, Steele’s appeal from the PCRA court’s ruling finally reached the Supreme Court of Pennsylvania, which found in Commonwealth v. Steele that it could not consider the juror’s declaration. The court noted that under Pennsylvania Rule of Evidence 606(b):

Upon an inquiry into the validity of a verdict,...a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

According to the Supreme Court of Pennsylvania, this Rule precluded the admission of the juror’s declaration because its exceptions apply only to “outside influences, not statements made by the jurors themselves.”

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, Rule 408 precludes the admission of evidence of, inter alia, settlements negotiations connected to "a claim that was disputed as to validity or amount" when offered for certain purposes. But at what point is there a "claim for Rule 408 purposes. If Dan allegedly breached a contract with Paul and Paul brings a lawsuit against Dan, obviously there is a claim. But what if Paul merely threatens to bring a lawsuit? Or what if Paul intimates that he might sue but doesn't actually threaten litigation? What's the standard for determining whether there is a claim? Well, let's take a look at the recent opinion of the Third Circuit in ECEM European Chemical Marketing B.V. v. Purolite Co., 2011 WL 5517319 (3rd Cir. 2011).

A defendant is on trial for first-degree murder. During trial, the judge takes questions from the jury and asks them to jurors. Here are two examples:

To an Eyewitness for the Prosecution

First

THE COURT: And sir, what effect, if any, did the fact that he had cornrows in that photographs have on your determination of whether or not to pick out that photograph?

THE WITNESS: Well, I have to say, of course, it was part of the, the whole picture, but the facial expression, the, it looks like the, the overall body size, just the face in general, the complexion, that taken into account as a whole, including the cornrows is what—

THE COURT: Okay. That was a juror's question.

Second

THE COURT: Sir, when you saw, were you able, saw the shooting, were you able to look directly at the shooter's face?

THE WITNESS: Yes. Yes, sir.

THE COURT: Is that as he ran by you?

THE WITNESS: Well, they were, when he started the shooting and then as he ran by, the, as he ran by was, he wasn't looking at the medic unit, but he was, you know, at a slight angle maybe looking down, but I had a good view of his face. The time when I saw his face fully as closely as it would represent the mug shot was when he came from the left side of Mr. Jones and started shooting, and then started running past us.

THE COURT: All right. That was a juror's question.

Was this proper? According to the recent opinion of the Court of Special Appeals of Maryland in Handy v. State, 2011 WL 5084570 (Md.App. 2011), the answer is "yes."

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a defendant is charged with interstate domestic violence and seeks to present evidence of his wife's habitual violent nature. Would that evidence be admissible under Federal Rule of Evidence 406? According to the recent opinion of the Fourth Circuit in United States v. Hurley, 2011 WL 5588810 (4th Cir. 2011), the answer is "no."